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I am writing on behalf of the American Civil Liberties Union of Northern California (ACLU). Today the Berkeley City Council will be presented with an anti-sitting ballot measure proposal. The ACLU opposes this measure as an infringement of civil rights and civil liberties. and calls on the members of the Council to reject it.

There are already numerous ordinances in the Berkeley Municipal Code that give the police power to confront people who are engaged in disruptive street behavior. There are ordinances prohibiting the obstruction of sidewalks and entrances to buildings (BMC §13.36.0I0; BMC §13.36.020), the solicitation of illegal drugs (BMC §13.36.090),and aggressive panhandling CBMC §13.37.020). The presence of all of these laws against the activities that are actually disruptive calls into question the need for, and purpose of, a law against sitting. It may be that the presence of a panhandler sitting on the sidewalk upsets some people in the business community, who feel it adversely affects their business. But that is not a constitutionally permissible reason to use the police power of the state to get certain people out of sight. Just as the vagrancy laws in the Depression were ultimately found to be a constitutional affront, Papachristou v. City of Jacksonville, 405 U.S. 15G (1972), so laws that make the innocent act of sitting a crime are a mean-spirited and constitutionally questionable response to today's challenging economic climate.

An anti-sitting law criminalizes an innocent activity. The proposed measure's provisions are sweeping, and even with the exceptions, would encompass a broad spectrum of behavior that no one would anticipate the State would punish. Yet everyone knows that persons in certain neighborhoods and persons who look a certain way are not going be punished if they sit on the public sidewalk or at the curb. Rather, the very purpose of the law is to give the police unfettered discretion to target a very small minority of those who violate its terms--the young, the poor, the homeless, and other marginalized groups. In other words, the unstated but clear modus operandi underlying such a law is that its enforcement will be highly selective and discriminatory.

Further, this law burdens the First Amendment right of freedom of speech. While the Ninth Circuit in Roulette v. City of Seattle found that a sit/lie law was not unconstitutional on its face, the Court recognized that such a law is unconstitutional if it is applied in such a way to unnecessarily limit free speech activities, 97 F.3d 300 (9th Cir. 1996). Street activities like playing music and panhandling are clearly protected free speech activities, The fact that Berkeley is requiring them to he engaged in while remaining standing will create burdens and obstacles for those seeking to engage in such expressive activities on the public sidewalk, especially elderly and disabled persons. These provisions would be subject to a legal challenge, much as similar provisions were challenged by the ACLU of Northern California in 1995 in Berkeley Community Health Project v. City of Berkeley, 902 F, Supp. 1084 (1995).

Since San Francisco enacted its own Sit/Lie law, the consequences of this type of legislation has become clear. As detailed in a City Hall Fellows report* released in March, the law there has not resulted in directing homeless people to needed services and support. Instead, it burdens many homeless, chronically ill people with citations they cannot pay.

This law is a step backwards. It is attempting to move a certain class of persons out of sight rather than provide services and support for those persons. I urge the Berkeley City Council to not rush this proposition to November's ballot, and instead allow time for more community input and consideration of alternative measures.

* Implementation, Enforcement and Impact: San Francisco's Sit/Lie Ordinance One Year Later, City Hall Fellows, March 2012. Available by request to pgallota@cityhallfellows.org.